This chapter refines the concept of constitutional symmetry and anticipates some potential objections. Contrary to what skeptics might assert, judges can reliably assess whether particular constitutional understandings are symmetric or not. In addition, favoring symmetry is valuable even though political alignments may shift in the future, and arguable asymmetries in the Constitution itself are not a reason to disfavor symmetric interpretations of provisions whose meaning is debatable. Symmetric interpretation also addresses contemporary challenges better than competing proposals to embrace “proportionality” in rights adjudication, give greater weight to existing precedent, or pursue one contemporary constitutional vision or another in no-holds-barred fashion. For judges who embrace an ethic of symmetric interpretation, a preference for symmetry should hold the greatest purchase in crafting general understandings of discrete constitutional provisions rather than overall interpretive theories or case-specific results, and judges should favor symmetric understandings even if their colleagues do not.

This chapter explores the Manichean narrative between political and legal constitutionalism. Examining the rival arguments of Jeremy Waldron and Ronald Dworkin, this chapter argues that we need to move beyond Manicheanism in order to capture the multi-institutional modes of rights protection in contemporary constitutional democracies. It argues that both Dworkin and Waldron succumb to the nirvana fallacy, a fallacy we need to shake off if we are to devise realistic accounts of how the key institutions act, counteract, and interact in a constitutional democracy. The chapter also puts pressure on the notorious ’counter-majoritarian difficulty’, arguing that we need counter-majoritarian checks, not only in the name of rights, but in the name of democracy as well. This chapter defends the idea of ’mediated majoritarianism’. Finally, it turns to the ongoing schism between political versus legal constitutionalism in UK public law, arguing that it suffers from similar flaws to the broader Manichean narrative. Instead of a zero-sum game between courts and legislatures, the branches of government can interact in mutually respectful and supportive ways.

This chapter tackles two prominent critiques of parliamentary Bills of Rights, namely, that they are thwarted by the Executive dominance of Parliament in Westminster systems, or that parliamentary deliberation about rights is vulnerable to policy distortion and debilitation by the existence of judicial decision making about rights. Charting a course ’from domination to collaboration’, this chapter responds that both these critiques exaggerate the drivers of dominance, with respect to the Executive and especially with respect to the courts. Drawing on recent political science scholarship in Westminster Parliaments, the chapter argues that the Executive is not as dominant and dictatorial as is assumed in popular lore. Moreover, an empirical analysis of political and parliamentary behaviour in the post-HRA era challenges the assertion that the key political actors succumb to a cringing court mimicry. Whilst remaining attentive to the dangers in both directions – i.e. in the direction of Executive aggrandisement or judicial supremacy – this chapter argues that we need to put these threats in perspective. The upshot is a complex picture of constitutional collaboration between powerful political actors, not the straightforward or simple dominance of one over the other.

I use a puzzling episode of judicial interpretation from South Africa to motivate the theoretical question about why judges sometimes alter their commitments to some legal interpretations but not others. I examine existing scholarship, which tends to portray judges as behaving in four distinct ways when engaged in legal interpretation: as guardians; as principled interpreters; as regime partners; or as strategic interpretors or deliberators. I argue that each of these portrayals falls short in explaining judges' shifting commitments to legal interpretation. Instead, I argue that judges are best understood as behaving as deliberative partners by combining key theoretical aspects of existing work into a novel theoretical position. I then outline the unique observable implications of each position and propose a fair test that examines judicial behavior in response to political parties' shifting stances on equality rights during key moments in Indian, South African, and American history.